The Supreme Court embarked on a new term Monday that sees a lot of old issues coming back around again. The justices will rule on affirmative action for the third time in four years. They will rule on public employee union fees for the third time in five years. They will deliver verdicts on class-action lawsuits and death penalty appeals, as they do virtually every year.
Before the term is out next June, they likely will consider the Affordable Care Act’s so-called “contraceptive mandate” for the second time in three years and update what they meant a generation ago in ruling that states could not place an “undue burden” on women seeking abortions.
Other issues that could reach the court this term or next include President Obama’s effort to shield millions of illegal immigrants from deportation, challenges to voter-identification laws and other restrictions, and efforts by merchants such as bakers and florists to turn down same-sex weddings.
A potential body blow to labor
Friedrichs v. California Teachers Association threatens the way public employee unions raise money from the workers they represent. In 2012 and again in 2014, the Supreme Court ruled that unions could not force non-members to contribute, but the decisions did not have nationwide impact.
The new challenge, all but invited by the court’s conservatives, comes from California teachers who object to paying for the costs of collective bargaining. They already can decline to pay for the union’s political activities, such as lobbying and campaign donations, but federal law says unions can collect from anyone they represent through collective bargaining.
Rebecca Friedrichs and her co-plaintiffs argue that everything public employee unions do is political, since they work for governments that collect and spend taxpayers’ money. The cost of union contracts, for instance, are borne by taxpayers and affect state finances.
Labor union officials say the ability to opt out of paying for purely political activities is sufficient. As a fallback, the court could change that rule so that workers would not pay for politics unless they opt in — a ruling that would cost unions money but would not signal a potential death knell. About 35% of public-sector workers belong to a union.
Higher ed affirmative action back in the crosshairs
Two years after punting the case back to an appeals court, the justices will take a second crack at resolving a dispute about the constitutionality of the University of Texas at Austin’s affirmative action program. The case was brought by rejected applicant Abigail Fisher, who contends she was rejected because of her race.
The last time Fisher’s case went before the high court, affirmative action opponents hoped it would serve as a vehicle to pare back preferences for racial and ethnic groups at government-run schools. However, the justices instead told the 5th Circuit it had been too deferential to the University of Texas’s claims that the programs were narrowly tailored to promote diversity. Justice Anthony Kennedy won the support of six other justices for a decision that said such programs must be handled with “strict scrutiny,” but the decision did not suggest they were automatically unconstitutional.
Justice Elena Kagan has recused herself because she was involved in the case during her previous service as solicitor general. The real question is whether Kennedy will join the four other Republican appointees in setting such a high bar for affirmative action that many public colleges will abandon the preferences and admissions practices they use to achieve racial and ethnic diversity.
The meaning of “one person, one vote”
A Texas case has the potential to deal a blow to Latino political clout, tilting the balance of power away from urban areas and towards suburban and rural areas with more white voters. Evenwel v. Abbott presents the question of whether state legislative districts can be apportioned using a count of eligible voters rather than a count of all people.
If immigrants (both illegal and legal) as well as children can be left out of the count, “the rural areas where voters tend to have fewer non-citizens or where there are fewer young people concentrated would necessarily gain,” said New York University Law Professor Rick Pildes. “It’s a reasonable inference if the urban areas are more Democratic leaning that they would lose power to more Republican rural areas.”
Congressional redistricting shouldn’t be directly affected by the case, Pildes said, because the Constitution says the U.S. census used for that reapportionment should be based on each state’s population. But others say the ruling could spill over into Congressional redistricting down the line.